One hundred seventy-five: the number of living indigenous languages in the U.S.[1] The number marks a dramatic decline from the estimated 300 tongues spoken at the time that Columbus arrived in the Caribbean in 1492.[2] Indigenous languages are in a state of crisis. After centuries long setbacks due to disease-related declines, genocide, forced population transfer, and aggressive assimilation in federally sponsored school systems, indigenous languages face continued lack of support and encroachment by mass media.[3] If current trends continue, only twenty indigenous languages will still be viable in 2050.[4] Supporting endangered language documentation and revitalization is a critical issue of our time, and an essential ingredient in building strong indigenous communities both on reservations and within the U.S. more broadly. Therefore, Congress, states, and indigenous groups have a short-lived opportunity to act, and cement indigenous languages more firmly in the law.
Since 1968, Native Americans have slowly regained lost sovereignty, reasserting self-determination. Similar measures have improved the lot of Alaska Natives and Hawaiians. Improved status for indigenous languages serves the values of federalism, honoring long-standing cultures that are deeply rooted on this continent (and in the Pacific).
The US federal government has an obligation to provide financial and legislative support for the revitalization of indigenous languages. Linguistic rights are implied by the US Constitution and the treaties with indigenous groups, and are an essential part of future federal policy towards indigenous people. New Zealand, Scandinavia, and Taiwan provide models which could be emulated to achieve these goals.
Fortunately, the development of grant programs and support for indigenous languages since 1990, with major amendments in 2015 and 2021 suggest a brighter future for indigenous languages in the US. Congress should clarify that these supports extend to indigenous sign languages and extinct languages. In coordination with the Federal Communications Commission, it should support improvement of telecom infrastructure that will allow better access to—and promotion of—indigenous languages. It may also wish to consider clarifying Indian civil rights law to uphold tribal sovereignty in the area of linguistic rights, while ensuring that indigenous languages are not turned into a cudgel against tribal republicanism.
Congress should adopt a new piece of legislation, referred to in this paper as the Sequoyah Act, to sponsor indigenous language revitalization, incorporating and expanding on legislation passed to-date. States could adopt similar legislation, or grant official language status to indigenous languages at the state level, thereby supporting and affirming indigenous cultures within the U.S.
II. LANGUAGE AND LINGUISTIC RIGHTS IN THE UNITED STATES
It is no exaggeration to describe the US as one of the world's most ethnically pluralistic nation, with over sixty million of its 330 million residents speaking a first language other than English.[5] The first humans are believed to have arrived in North America 15,000 years ago from Siberia, soon diversifying into numerous linguistic and cultural groups: today’s Native American groups.[6] In 2020, the Census Bureau reported that approximately 9.7 million U.S. citizens are Native American or Alaska Native, the descendants of around two percent of the original population that survived war and disease during the European settlement of North America.[7]
These groups engaged in long-distance trade and agriculture, built large settlements, and produced ceramics over the course of thousands of years.[8] However, the arrival of European settlers in the 1600s initiated a long period of cultural decline driven in large part by Old World infectious diseases such as smallpox and measles, which decimated indigenous communities.
Britain, France, and Spain as the most significant European powers in North America sought alliances with powerful Native American tribes and confederations. In British North America, the King imposed a ban on settlement west of the Appalachians, adding to a list of grievances seized upon by the American colonists in the American Revolution.[9] The early US grew rapidly westward through a combination of land purchases and conquest, soon coming into conflict with indigenous peoples. Mass deportations of Native Americans typified the early decades of the republic, followed by a period of internecine conflict and massacres on the frontier. As a condition of the Mexican Cession, the US agreed in the Treaty of Guadeloupe-Hidalgo to eliminate the Comanche threat posed to northern Mexico.[10]
Almost from the start, values of federalism, individualism, personal liberty, and freedom of association have characterized the US. But the treatment of Native Americans—together with the treatment of slaves and their descendants—were two areas where this noble outlook saw little implementation. The position of Native Americans has evolved considerably in American public life. Fortunately, notions of "Indian givers"[11] and the portrayals of mid-century Westerns has given way to a more complex picture, that largely portrays Native Americans as the victims of white settler colonialism. Nonetheless, contemporary attitudes still tend to see Native Americans as peripheral to American society—and official federal and state law does not take steps which are forceful enough to protect indigenous languages from extinction.
A.The Decline of Indigenous Languages: Attempts at Assimilation
The current total of 175 living indigenous languages is a substantial decrease from the estimated 300 languages spoken at the time of European contact.[12] Much of what is known about extinct Native American languages, or older versions of living languages is from European-language sources, including languages spoken more widely in the colonial period such as Swedish, Dutch, or Danish.[13] Although some languages in what is now the U.S., like Micmac, had pre-existing hieroglyphic writing systems, many indigenous writing systems were developed after contact in conjunction with missionaries.[14] This is true of Sauk, Fox, Winnebago, Kickapoo, Micmac, Cherokee, and other languages.[15] Trade and travel were part and parcel of life for many tribes, and to overcome language barriers with other native groups or Europeans, several pidgins, trade jargons, and sign languages developed, most famously Chinook Jargon, Mobilian Jargon, and Plains Sign Language.[16] In other cases, tribes adopted European languages, like the variant of French spoken by the Houma Indians of Louisiana.[17]
The American landscape is dotted with indigenous place names and descriptors for North American species.[18] Take for instance, Mississippi, drawn from an Ojibwe compound word for “big river.” Algonquin lends us ubiquitous words like squash, chipmunk, toboggan, tomahawk, and raccoon.[19] But in spite of the ever-present contribution of indigenous languages, the actual state of most of these languages is dire in the 21st century, with many extinct—or on the verge of disappearing—due to over two centuries of population decline, forced population transfer, outright genocide, and assimilation polices.
European, and principally Anglo-American settlement of what is now the U.S. is believed to have resulted in the death of ninety-five percent of Native Americans by the end of the 19th century.[20] Native people were steadily extirpated from eastern portions of the continent by both accidental and intentional means, with European diseases playing a large role.[21] Conflict and denigration of native people was widespread but by no means universal. In 1643, Roger Williams, founder of Rhode Island and proponent of religious tolerance published A key into the language of America, a comparatively humanizing attempt to understand the Indians of the Narragansett Bay region.[22] He wrote “For my selfe [sic] I have uprightly laboured to suite my endeavours to my pretences: and of later times (out of desire to attaine [sic] their Language). . . Many solemne [sic] discourses I have had with all sorts of Nations of them, from one end of the Countrey [sic] to another. . .”[23] For Roger Williams, understanding native languages was a means of understanding native cultures as well.
Although some tribes groups reached a degree of stability with their European neighbors, native people often came to be viewed as “unassimilable” aliens after the American Revolution.[24] Quakers in Pennsylvania and New Jersey promoted a more tolerant objective of assimilation that gained some popularity with President Washington and President Jefferson.[25]
In Johnson v. M’Intosh, in 1823, the Supreme Court famously asserted federal authority over Indian tribes based on the doctrine of discovery.[26] By asserting broad federal authority over Indians, the case paved the way for subsequent forced removal of Indians to reservations.[27]
In the South, the so-called “Five Civilized Tribes,” the Cherokee, Creek, Chickasaw, Choctaw, and Seminole tribes engaged in advanced trade and agriculture, held slaves, and used written languages.[28] The Cherokee polymath, Sequoyah, developed a unique syllabary to write the Cherokee language in the 1820s.[29] In spite of the cultural similarities between the Five Civilized Tribes and white Georgia citizens, Georgia urged Congress to act against the tribes.[30] The Supreme Court, led by Chief Justice Marshall held for the Cherokee and indicated that tribes are in effect domestic dependent nations.[31] Nonetheless, the Jackson Administration went ahead with the deportation of Cherokees westward to Oklahoma resulting in 8,000 deaths along the Trail of Tears.[32] Native Americans, even those with Westernized American customs were seen as occupying valuable land that could be freed up for agriculture, and inhabitation by new arrivals.[33] The existence of Cherokee syllabary undermined the idea of Native American cultural inferiority that served as the premise of Indian removal, prompting public outcry from many American leaders even at the time of deportation. Additionally, Cherokee syllabary gave Cherokee Indians a means of resisting U.S. hegemony, with ten percent of current day Eastern Cherokee speaking the language, and was used to document tribal law and folk medicine even in the aftermath of the tragic removal.[34]
State governments and private actors were often as callous as the federal government in their treatment of Native Americans. In the single most egregious example, California in 1850 passed Chapter 133, authorizing genocide against its native residents, including taking natives into indentured servitude.[35] By the early 1870s, as many as 16,000 native California Indians were exterminated or worked to death.[36]
In the aftermath of the Civil War, Congress feared disunity in the U.S. Native Americans were perceived as standing in the way of economic progress and particularly in the West still controlled valuable lands that the government wanted to open up for settlement.[37] Perhaps due to awareness of cultural achievements like the Cherokee syllabary, Native Americans were seen as being on a more equal footing with white Americans in the 19th century’s racial hierarchy if they could be retrained in the ways of “civilization.”[38]
In 1871, the President and Senate were ostensibly stripped of their power to negotiate treaties with tribes, but in fact agreements continued to be made, adopted as legislation by Congress.[39] Between 1887 and 1934, the Department of the Interior allotted parcels of land to Indian heads of households.[40] The land would be held in trust for twenty-five years, before the Indian owner gained full-title.[41] But full-title would expose these properties—many on marginal land—to state and local taxation, often resulting tax foreclosure.[42] The result was a rapid fragmentation of Indian lands, with the goal of assimilating Indians with the rest of American society.[43]
At the same time as tribes were dismantled through federal Indian land policy, the federal government launched a formal policy of assimilating Native Americans, which took the form of forced enrollment of native children in boarding schools after 1879.[44] In the words of Richard Henry Pratt, the founding director of the Indian residential Carlisle School, the goal of the Bureau of Indian Affairs was to “Kill the Indian, save the man.”[45] This meant prohibiting children from speaking their indigenous languages, contributing significantly to the dramatic decline of Native American languages.[46] Between 1879 and 1960, an estimated 100,000 Native American children passed through boarding schools, and even as late as 1971 seventeen percent of Native American children were in foster care or institutions.[47]
Indians also lost out at the state level, particularly in the binary racial system of the Jim Crow South.[48] The Houma Indians in Louisiana, for instance, were classified as “coloured” by the state supreme court in 1918, and were subject to racially segregated schools.[49] Houma marriages were unrecognized by the state and as a result Houma children were illegitimate and could not inherit land.[50] Once oil was discovered in the region, private actors exploited lack of English knowledge among the Houma to fraudulently acquire land and conduct tax sales.[51] In one of the most flagrant abuses of Louisiana’s state powers leveled against Indians, some Ofo Indians were placed into mental institutions for speaking their own language, on the grounds that were not “real” Indians simply because the tribe lacked federal recognition.[52]
The Indian New Deal beginning in 1934 with the Indian Reorganization Act was the first statute that allowed tribes to opt out of federal legislation, ending further allotments and directing the Secretary of the Interior to repurchase land for tribes.[53] During World War II, as it did in World War I, the federal government found a use for indigenous language, recruiting Navajo men as “code talkers” or “windtalkers” concealing U.S. communications from interception by Japan by speaking in Navajo.[54] Ironically, the U.S. came to rely on indigenous languages to meet its wartime needs, even while attempting to stomp them out at home.
Although the Indian New Deal offered a ray of hope, it did nothing to roll back assimilationist cultural policies. The boarding schools program formally ended with the 1953 Indian Termination Act.[55] But the Termination Act itself was assimilationist in its goals: Congress terminated tribal governments, eliminated recognition, revoked federal funds, and privatized tribal businesses.[56]
President Johnson signaled a different direction with the passage of the Indian Civil Rights Act, mandating tribes to follow many aspects of Constitutional law, and established the National Council on Indian Opportunity (NCIO)—although the Johnson Administration’s efforts may have been largely assimilationist. The Nixon Administration pushed for tribal self-determination, which took the form of the Indian Self-Determination and Education Assistance Act.[57]
Language goes to the core of what it means to be a “people,” in an ethno-linguistic sense. Yet, the role of languages is more than theoretical in the context of federal recognition, tribal law, and treaty interpretation. After attitudes began to shift in favor of Indian sovereignty after the 1960s, indigenous languages—and culture—received newfound attention in the law.
In United States v. Washington, in 1974, [58] the U.S. sued to settle Indians’ off-reservation treaty fishing rights. Judge Boldt, deciding the case, in favor the Indians looked at what the Indians would have understood at the time the treaty was negotiated. “There is no indication that the Indians intended or understood the language ‘in common with all citizens of the Territory’ to limit their right to fish in any way.”[59] Considering what the signers of the treaty would have understood at the time, communicating in Chinook Jargon, the Ninth Circuit held for the Indians again in 2017, when faced with a challenge to culvert construction by the State of Washington.[60] The Supreme Court followed this line of reasoning in the 2019 Cougar Den case.[61] In Cougar Den, Justice Gorsuch concurred, contending that the treaty should be interpreted as the Yakama language speakers would have understood it, whereas Justice Kavanaugh dissented taking a different interpretation of the treaty, in part on language grounds.[62]
Alongside the rise in treaty interpretation based upon indigenous languages, some tribes began to readopt their languages within tribal law. Within the Navajo Nation, the Navajo Nation Bar now attracts both members of the tribe and non-Indians.[63] But simultaneously, beginning in the 1980s there was a resurgence of traditionalism within Navajo law, emphasizing Navajo language documents, judges as peacemakers, and above all “Navajo thinking.”[64]
During the critical years of the 1970s and 1980s as cultural preservation and tribal sovereignty returned to being priorities, Congress also took steps to foster cultural cohesion, reversing course on assimilationist policies that reined supreme at the Bureau of Indian Affairs as late as 1974. In 1958, during the Termination Era, the Bureau of Indian Affairs had launched the Indian Adoption Project, placing Indian children with white families.[65] A press release from 1966 boasted “One little, two little, three little Indians—and 206 more—are brightening the homes and lives of 172 American families, mostly non-Indians, who have taken in the waifs as their own.”[66]
Between 1969 and 1974, as many as thirty five percent of native children were removed from their homes and placed in foster care or adopted.[67] Responding to this state of affairs, Congress passed the Indian Child Welfare Act (ICWA) in 1978.[68] ICWA grants tribes automatic jurisdiction in child custody proceedings for children domiciled on reservations, and calls on state courts to transfer jurisdiction to tribes for off-reservation cases involving native children—although in practice the ICWA has given rise to contests between state and tribal jurisdiction.[69]
In parallel with the reassertion of treaty rights and a reemergent role for native languages in tribal law, Congress prioritized indigenous rights in different areas. Historical preservation laws expanded to encompass Native Americans throughout the waves of Congressional statutory action in the 1970s, 1980s, and 1990s. The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) is the cornerstone of a statutory regime intended to better protect Native American cultural artifacts. NAGPRA provides that items may be excavated with a permit under section 4 of the Archaeological Resources Protection Act of 1974, in consultation with tribes.[70]
NAGPRA emerged in 1990 out of the Reservoir Salvage Act of 1960, the Archaeological Resources Protection Act, the American Indian Religious Freedom Act, and the 1989 National Museum of the American Indian Act.[71] NAGPRA applies to four types of items: (1) human remains, (2) funerary objects, (3) sacred items, and (4) objects of “cultural patrimony.”[72] Items of cultural patrimony are “items having ongoing historical, traditional, or cultural importance central to the Indian tribe or Native Hawaiian organization itself.”[73] Courts have upheld “cultural patrimony” against void for vagueness constitutional challenges, such as affirming the conviction of an art dealer selling Hopi masks.[74] Many states have adopted state-level statutes similar to NAGPRA.[75] The advent of NAGPRA at the federal level, and similar legislation at the state level is in effect a legislative record of governmental interest in proactive protection of Native American culture.
C. Linguistic Rights and the Status of Indigenous Languages in Federal Law after 1990
In the same historical moment as the enactment of NAGPRA, Congress adopted the Native American Languages Act of 1990.[76] The statute does not define linguistic rights, but comes closer to formalizing respect for indigenous languages than any other legal instrument.
The U.S. Constitution is an intentionally sparse document and makes no reference to linguistic rights.[77] Nevertheless, some form of linguistic rights would seem to be inferred by the Constitution. Courts have focused on "substantive due process" under the Fifth and Fourteenth Amendment.[78] Due process concerns around language emerged during a wave of anti-German backlash brought on by World War I.[79] A Nebraska law forbid teaching of any language other than English to students until after graduation from the eighth grade, and a parochial school teacher was convicted of teaching German to a student.[80] The US Supreme Court reversed the conviction on due process grounds.[81] "It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child."[82]
Indigenous language rights in the U.S. could be positioned under (1) due process, (2) equal protection, (3) First Amendment free speech, (4) retained rights under the Ninth Amendment, and (5) the tribal trust relationship with the federal government—or by extension freedom of association under the First Amendment.[83]
Historic treaties with Native Americans in the 18th and 19th centuries are largely silent on the question on linguistic rights, with the exception of the 1828 Treaty with the Western Cherokee, that mentions the Cherokee language indirectly.[84] Thus, the enactment of NALA was a major step for Congress.
Although NALA was a forceful statement of Congressional support for Indian self-determination, it did not specify any actions or provide funding for indigenous languages.[85] Congress subsequently adopted the NALA of 1992, which did include one- to three-year grants for training programs, disseminating teaching materials, preparing broadcasts, or carrying out audio-visual recordings.[86] However, the second NALA allocated initially only two million dollars a year and required a twenty percent grant match by recipients.[87]The Act extends its definition of "Native Americans" to Native Hawaiians and "Native American Pacific Islander[s]" thus encompassing Chamorrans and Samoans.[88] However, thirty years later, financing under the Act has proven sparse, dedicating $13 million annually between 2020 and 2024, while the provincial government of British Columbia in Canada has dedicated $50 million per annum in a single province.[89]
Only a few court cases have been brought under NALA. In 1996, the District of Hawaii ruled against Native Hawaiians in a suit brought against the state Department of Education and Bureau of Education, which indicated that NALA does not abrogate Eleventh Amendment immunity for states or rights enforceable under § 1983.[90]
Congress expanded on its early 1990s pronouncements in 2006[91] and 2015, by establishing a grant program to fund schools that use Native American and Native Alaskan, reserving twenty percent of appropriations under 20 U.S.C.A. § 7492 for this funding.[92] It defined “eligible entities” for grant purposes as Indian tribes, tribal colleges and universities, tribal or local educational institutions, Bureau of Indian Education schools, nontribal for-profit organizations, private or tribal nonprofit organizations, and Alaska Native Regional Corporations.[93]
Effective March, 2021, the U.S. Code provides for grants to encourage language transfer between old and young Native Americans, support printing and distribution of training materials, buying audiovisual equipment for documentation, training language educators, and translators, and transcribing existing oral testimony.[94] Additionally, Congress added supports for language nests, language restoration programs, and language survival schools.[95]
Secretary of the Interior Deb Haaland and First Lady Jill Biden visited the Cherokee Nation in early December, 2021 to promote Native American language rights. The Office of Indian Economic Development touted its Living Languages Grant Program, with a goal of disbursing fifteen to sixty grants in 2022, valued between $25,000 to $200,000.[96]
Chamorro, the native language of Guam, is presumptively included in consideration for grant financing based upon the text of 25 U.S.C.A. § 2902, which reads “The term ‘Native American’ means an Indian, Native Hawaiian, or Native American Pacific Islander.” Thus far, federal law has not explicitly referred to Chamorro, although efforts at language revival are recognized in Guam’s territorial law.[97] The Guam Department of Education is required to develop a Chamorro curriculum in all island elementary and secondary schools, encompassing six years of mandatory Chamorro coursework, and the regular singing of the Guam Hymn.[98]
D. Indigenous Languages in State Law
Among U.S. states, Hawaii may be the leader in indigenous language rights. English and Hawaiian are formally declared as official state languages in the Hawaiian Constitution.[99] To-date, Hawaii is the only state with an indigenous language enshrined in its state constitution, but South Dakota in 2019 adopted Lakota, Dakota, and Nakota as official languages through legislation.[100]
The question of indigenous language rights is inevitably bound up in questions of English as a state official language. Thirty states have adopted English as the official language at the state level.[101] However, the U.S. English Foundation states, “‘English-Only’ is an inaccurate term for any piece of official English legislation. U.S. English, Inc. has never and will never advocate for any piece of legislation that bans the use of languages other than English within the United States.”[102] This assessment would appear to be true in the context of indigenous languages, because both Hawaii and North Dakota have adopted official English laws.[103]
E. Indigenous Linguistic Rights Around the World
Article 13 of the UN Declaration on the Rights of Indigenous People proclaims, “Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.”[104] Official status for minority language is a common policy in many countries, particularly within the European Union.[105] Many countries have witnessed stability thanks to a lingua franca, which can facilitate trade and learning, while lessening ethnic and regional differences. However, official policies of multilingualism can promote both goals.
New Zealand stands out as a model for the U.S. given its similar history and comparable, English-derived common law legal system, where the 1840 English-Maori Treaty of Waitangi serves as the foundational, constitutional document. [106] In spite of high Maori language literacy in the 19th century, official policy promoted English and ultimately the mass migration of Maori off of traditional lands to cities throughout much of the 20th century.[107] After almost a century of complete obscurity in New Zealand law, Parliament adopted the Maori Affairs Act of 1953, which granted official status to the Maori language.[108] New Zealand courts proved unwilling to use the 1953 Act to uphold a right to a Maori interpreter in courts, in the 1980 case Mihaka v. Police.[109] However, in 1975 the government had passed the Treaty of Waitangi Act, creating a Waitangi Tribunal to investigate Maori claims.[110] In 1986, weighing testimony from Maori people, linguists, and government agencies, as well as examining the original Maori text of the Treaty of Waitangi, the Tribunal concluded that the Maori language was a “valued possession” within the meaning of the treaty, and the national government had an affirmative duty to preserve it.[111]
In 1981, a new generation of Maori parents launched Te Kohanga Reo language nests to boost Maori language knowledge, with 600 active throughout the country by 1998.[112] What started as a purely private initiative gained steam after the 1986 Tribunal decision, when the New Zealand Parliament passed the Maori Language Act of 1987.[113] The same year, it established the Maori Language Commission to track language proficiency and began providing millions of dollars in funding toward language nests and school programs.[114]
Scandinavian governments have emerged as leaders in national government support for indigenous languages.[115] In Sweden, Sami indigenous people (better known in English as Lapps) comprise only 0.1 percent of the population.[116] Sami people were historically mistreated along a similar pattern as Native Americans, with children placed in assimilationist boarding schools until 1962, human remains kept in government research institutions, and land seized for mining.[117] Starting in 1962, Sweden implemented Sami language education programs, providing weekly classes, textbooks, university instruction, and teacher training.[118]
Taiwan, after the end of authoritarian rule in the 1980s became a model for linguistic rights, reversing decades of poor treatment of its indigenous inhabitants.[119] Throughout the 1990s, continued dominance by the traditionally Chinese nationalist Kuomintang party prevented official status for indigenous languages in schools, but the success of the Taiwanese nationalist Democratic Progressive Party in the late 1990s resulted in mandatory Taiwanese language classes in primary schools after 2001.[120] The National Languages Committee that previously promoted Mandarin Chinese shifted to promoting indigenous languages. The country’s National Chengchi University produced thirty eight language textbooks and a series of thirteen proficiency exams, which aboriginal students can use to gain additional points for university admissions.[121] Borrowing from the revitalization efforts in New Zealand for Maori, Taiwan established “language nests” placing elderly speakers together with pre-school children after 2001.[122]
Even countries without the degree of formalized minority language protection have increasingly taken some action to serve minority language speakers. For instance, by 2007, the U.S. and Canada each provided some degree of bilingual education support, while in Israel, Arab residents of ethnically mixed towns persuaded the Israeli Supreme Court to mandate bilingual signs.[123]
F. Unique Considerations with American Indigenous Languages: Voting Rights
Indians were long excluded from the voting rolls in the US.[124] The Civil Rights Act of 1866 excluded “Indians not taxed” and in the 1884 case Elk v. Wilkins the Supreme Court found Indians were not citizens within the meaning of the 14th Amendment.[125] Even after the passage of the 1924 Indian Citizenship Act, six states banned Indians from voting if they were untaxed.[126] Until 1958, North Dakota’s Constitution required Indians to sever tribal ties two years before voting in any election.[127]
The Voting Rights Act of 1965 applied the Fifteenth Amendment more forcefully, but through the constitutionally suspect pre-clearance regime, administered by Department of Justice and the courts.[128] Section 203 of the VRA requires that jurisdictions with large language minorities offer written materials in languages other than English.[129] However, 1982 VRA amendments raised the requirements so that at least five percent of individuals in a jurisdiction needed to speak a second language.[130] As a result, VRA coverage was eliminated for most previously covered counties in Oklahoma, North Dakota, and Montana.[131]
In 2000, over twenty percent of Native Americans had limited English proficiency.[132] Online voter registration, where implemented is typically not offered in indigenous languages, and even the production of written material for elections may be of limited value where languages are primarily spoken rather than written.[133]
The VRA remains a fiercely contested piece of federal legislation, centered on left-right debates around voter ID laws. Proponents of Native American voting rights contend that Native Americans continue to face barriers to voting. For instance, in 2019, only 1.4 percent of North Dakota legislators were Native American, even though 6.5 percent of the state’s population are indigenous.[134] Democrats have put forward the Native American Voting Rights Act to reimpose pre-clearance, and (in one iteration) fund tribal-state consortiums to expand Native voter registration.[135]
Apart from the question of federal voting rights, indigenous languages are also implicated in tribal politics. Some tribes have language fluency requirements to stand for tribal office.[136] Such requirements proved popular in the Southwest, with the Navajo, Hopi, and White Mountain Apache tribes.[137] However, in 2015, the Navajo Nation eliminated its Navajo fluency requirements for tribal offices.[138]
G. Unique Considerations with American Indigenous Languages: Telecommunications
Access to telecommunications services and new media technology is central to indigenous language preservation and revitalization. Although television and internet can enhance the “network effects” of language, encouraging greater awareness of common tongues, it can also offer a vital avenue to audiovisual or text archiving, creating and distributing media, and coordinating among groups with similar experiences. Reliable telecommunications are particularly significant because over seventy eight percent of Indians live off of reservations, creating a physical and technological distance from reservation communities where indigenous languages are often most likely to be spoken.[139]
Native American media has deep roots in the US.[140] Cherokees launched the bilingual English-Cherokee Phoenix newspaper in 1827.[141] Throughout the 1940s, some radio stations began to broadcast programs in indigenous languages.[142] In 1983, the American Native Press Archives launched as a means of collating indigenous publications.[143] The advent of the internet expanded Native American media with the Koahnic Broadcast Corporation, Indian Country Today, and Center for Native American Radio (financed in part by the Corporation for Public Broadcasting).[144]
Walking into any university library is a good reminder of the extent of research on Native American culture, history, and archaeology. However, these resources—and the ability to engage with new media—remain out of reach for many reservation residents. At the dawn of the 21st century, as broadband and cellular service made rapid inroads throughout most of the US, reservations lagged far behind.[145] In 1999, only thirty-nine percent of rural Native American households had telephones, and forty-four percent of tribes lacked local radio stations.[146] At the time, tribal governments had not exercised regulatory authority over telecom, leaving that to the Federal Communications Commission (FCC) and in some cases state public utility commissions.[147]
One commentator described reservations as subject to “geographic apartheid” and “electronic redlining,” with limited penetration of phone service and broadband internet. [148] But a more careful examination of the issues facing telecom on reservations reveals a more nuanced interplay between poorly considered tribal and federal policy. The FCC launched its Office of Native Affairs and Policy (ONAP) in 2010.[149] The same year, the FCC created a Tribal Radio Priority to support access to communications services.[150]
In a 2019 report, ONAP identified current day challenges with telecom deployment on tribal lands.[151] Universal service funds are often targeted to single uses like libraries or healthcare, blocking opportunities for “synergies and efficiencies.”[152] The Ewiiaapaayp Band of Kumeyaay Indians in San Diego County, lacks phone and internet connectivity, although it appears on internet service provider maps as fully served. Although the tribe has proposed colocation of facilities, USF funds cannot be co-mingled at the present time.[153]
When broadband providers receive federal telecom funds, such as out of the Connect America Fund, tribes are not consulted—and are often last in line for build out.[154] Broadband providers can sometimes meet build out requirements without actually building out infrastructure to tribes. In its report, the FCC recommended a Tribal Priority to accompany the 2010 Tribal Radio Priority.[155] “Tribes should be given first priority or a right of first refusal for receiving federal funding and the priority for subsidies should include the right of Tribes to exercise oversight, determine what service is acquired and how services should be distributed on or over Tribal lands with respect to all communications services, regardless of delivery technology.” For now, the FCC lacks a standard definition of “tribal lands,” complicating efforts to target funding.[156]
By virtue of location, often in remote rural areas, many reservations are low priorities for telecom investment to begin with. But tribes are limited in their ability to collateralize assets to gain loans due to the inability to collateralize federal and state reservations lands and allotted trust lands.[157] Tribes are also inhibited where a tribal government lacks a reservation, has a checkerboard reservation, or lacks the ability to access “middle-mile” connections (uses of USF funds for middle-mile development can be limited in some circumstances).[158] Because tribes are sovereign domestic dependent nations, tribal laws apply on reservations. Zoning and land use laws vary widely, creating uncertainties for telecom infrastructure projects.[159]
III. LEGAL ANALYSIS
After centuries long setbacks, Native Americans, Pacific Islanders, and Native Alaskans have finally regained self-determination. However, indigenous languages continue to decline. Faced with this troubling situation, indigenous groups of all sizes have begun to act. In Wisconsin, the state’s eleven federally recognized tribes have coordinated with the state to put in place bilingual road signs thus emphasizing native languages in one of the most obvious examples of the linguistic landscape,[160] Ojibwe Indians have launched a “language nest” for young children at University of Minnesota-Duluth,[161] and the Fort Berthold Indian Reservation is working with the University of North Dakota to digitally preserve the Mandan, Hidatsa, and Arikara languages.[162] Tribal sovereignty granted tribal governments considerable flexibility to distribute vaccines during the Covid-19 crisis, and the Cherokee prioritized speakers the 2000 speakers of the Cherokee language.[163] Such prioritization by tribes of all sizes—even small ones—indicates the importance of language for what it means to be a “people” in the 21st century.
The role of language in making a “people” is true not only in a cultural and sociological sense, but also in a legal sense. In 1974, the U.S. Supreme Court famously indicated that tribes are political, rather than racial in-nature, and that federal policy is intended to serve these “constituent groups,” which are “quasi-sovereign tribal entities whose [members’] lives and activities are governed by the BIA in a unique fashion.”[164] Although language is not a requirement for tribal membership, in the way that it is to become a U.S. citizen,[165] it can be a valuable basis for tribes as “constituent groups.”
Congress has the ability to increase annual funding allocations for language grant programs.
However, language preservation inevitably raises questions about priorities. Many reservations face serious funding shortfalls around education, policing, infrastructure, public health, and even fundamentals like food and medicine. Why prioritize language preservation when these other areas are neglected?
For many tribes, these fundamental needs do come first, and enhanced federal support is doubtless welcome. But language preservation—and indeed revitalization—may be more essential than many imagine. Having a common tongue can be an essential part of what it means to be a people, and the type of cultural exchange needed to revitalize a language has the potential to enhance interest in education, promote intergenerational exchange, and networking within a tribe.
In the event that Congress is unable to furnish additional funding for indigenous languages, Congress could work with tribes to develop a prudential or objective standard for allocating grants. Such a formula should weight the degree to which a language is documented in books, dictionaries, audio-visual material, and teaching material, against the number of potential speakers. The goal of this type of “language triage” would be to find languages that are both the least documented and have the most potential speakers, prioritizing funds for those languages first. Ensuring that languages are documented gives latitude to current and future generations to decide the role of language in their own community. For instance, current and future generations of Houma could opt to learn Houma French with its Choctaw grammar elements, revive the traditional Houma language, or use Mobilian Trade Jargon.
Prioritizing language preservation is in-line with other federal policies enacted in the nearly sixty years since the passage of the Indian Civil Rights Act. Promoting indigenous languages, broadly speaking, serves the goals of the Indian Child Welfare Act, with its focus on keeping native families and culture intact.[167]
Passing a Sequoyah Act as the capstone of a series of federal laws concerning indigenous languages would be a significant step. However, other federal, state, and municipal legal considerations must be weighed as well.
A. Non-Native Nations?
Among settler-immigrant countries, Canada and South Africa are perhaps notable for the presence of non-native, but nonetheless culturally and linguistically distinct ethnic groups that have undergone a process of advanced post-settlement ethnogenesis. French-Canadians (both Quebecois and Acadian) and Afrikaners are the examples that come to mind most readily. The US due to rapid settlement and a pattern of cultural homogenization has ample regional distinctions, but fewer groups that might compare with the cultural position of French-Canadians and Afrikaners. Nevertheless, the US is not without ethno-linguistically distinct, non-native groups. To varying degrees Cajuns in Louisiana, Acadians in Maine, Amish and Hutterites, ultra-Orthodox Jews—and communities added to the United States by conquest like the Tejanos of Texas or Puerto Ricans—might merit comparisons.
Federal policy aimed at promoting strong cultural institutions might find other means of supporting this groups, although such support is likely to come most appropriately (and effectively) from the state level. Rather, the test under expanded federal grant funding is likely to be (1) federal recognition, (2) unrecognized indigeneity significantly similar to federally recognized groups, or (3) ethnogenesis out of indigenous elements. The goal of linguistic protections is likely to be over-inclusive, rather than under-inclusive.
B. Improving the Position of Indigenous Languages at the State Level
The formalization of indigenous official languages in two U.S. states with highly divergent politics, like Hawaii and South Dakota, suggests that there may be openness to similar legislative language promotion elsewhere. Adopting some form of official or minority language status through legislation—or in the state constitution—should be a priority, particularly in states with large indigenous populations like California, Arizona, New Mexico, Oklahoma, North Dakota, and Alaska.
State university systems also have a significant role to play, providing coursework in indigenous languages, or granting language credit to indigenous speakers. For instance, Arizona State University has launched a Navajo language program.[168]
Municipal governments can also play a role in promoting indigenous languages, through town, city, or county referendums or votes defining the languages of official business.[169] In Iowa, by late 2000, eleven counties had voted to make English the official language of county business, presaging a statewide official language bill.[170] Although little explored, the municipal avenue could be a way to implement increased supports, and indeed pressure state governments to act on indigenous languages.
Although federal courts have consistently held that neither the Equal Protection Clause nor the Civil Rights Act of 1964 create a right to language access, in actuality denying public services based on language would quickly run afoul of race, ethnicity, and national origin protections.[171] Executive Order No. 13,166, issued in August, 2000,[172] requires federal funds recipients to “ensure meaningful access to programs and activities,” for those with limited English proficiency.[173] State agencies and municipalities are strongly encouraged to come up with data-based plans and provide language access services that can include hiring interpreters or bilingual staff, coordinating with community groups, or contracting for telephone translation services.[174] Telephone-based systems have proven particularly important for some languages, like Hmong, that are oral only.[175] Tribal governments can file complaints with federal agencies funding state and municipal programs if language services are not met, or depending upon the state remedies available may also be able to sue in state courts under state civil rights statutes.[176]
C. Improving Telecom on Reservations to Boost Indigenous Languages
The FCC, in coordination with tribal governments, could create a more encompassing Tribal Priority for communications, to support the development high speed broadband, 5G, and traditional cellular and radio infrastructure on reservations. Simultaneously, in coordination with tribes and the Bureau of Indian Affairs, the FCC should collate a centralized database of tribal laws governing telecom infrastructure, and promulgate a model statute for tribes to accelerate the deployment process. Additionally, the FCC should clarify data gathering for USF funds and require that broadband providers build out reservation infrastructure upon receipt of funds.
IV. CONCLUSION
The US federal government has an obligation to provide financial and legislative support for the revitalization of indigenous languages. Linguistic rights are implied by the US Constitution and the treaties with indigenous groups, and are an essential part of future federal policy towards indigenous people. Scandinavia, New Zealand, and Taiwan provide models which could be emulated to achieve these goals.
Fortunately, the development of grant programs and support for indigenous languages since 1990, with major amendments in 2015 and 2021 suggests a brighter future for indigenous languages in the US. Congress should clarify that these supports extend to Chamorro and to extinct languages. In coordination with the FCC, it should support improvement of telecom infrastructure that will allow better access to—and promotion of—indigenous languages.
REFERENCES
[1] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008). [2] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008). [3] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008). [4] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008). [5] American Academy of Arts & Sciences, The State of Languages in the US: A Statistical Portrait 3 (2015). [6] See Marren Sanders, Genomic Research in Indian Country: The New Road to Termination?, 39 Okla. City U. L. Rev. 1, 9 (2014). [7] 2020 Census: Native population increased by 86.5 percent, Indian Country Today, (Aug. 13, 2021), https://indiancountrytoday.com/news/2020-census-native-population-increased-by-86-5-percent; Kelly E. Yasaitis, NAGPRA: A Look Back Through the Litigation, 25 J. Land Resources & Envtl. L. 259, 260 (2005). [8] See generally Pennsylvania Historical Commission & Museum, Native American Archaeology (Sept. 10, 2015), http://www.phmc.state.pa.us/portal/communities/archaeology/native-american/index.html. [9] Angela R. Riley, Indians and Guns, 100 Geo. L.J. 1675, 1694 n.106 (2012). [10] John W. Ragsdale, Jr., Values in Transition: The Chiricahua Apache from 1886-1914, 35 Am. Indian L. Rev. 39, 45 n.26 (2011). [11] Lakshmi Gandhi, The History Behind The Phrase 'Don't Be An Indian Giver', NPR (Sept. 2, 2013), https://www.npr.org/sections/codeswitch/2013/09/02/217295339/the-history-behind-the-phrase-dont-be-an-indian-giver. [12] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008). [13] Lyle Campbell, American Indian Languages: historical linguistics of Native America 9 (2000). [14] Lyle Campbell, American Indian Languages: historical linguistics of Native America 9 (2000). [15] Lyle Campbell, American Indian Languages: historical linguistics of Native America 9 (2000). [16] Lyle Campbell, American Indian Languages: historical linguistics of Native America 10 (2000). [17] Diane Smith, ed. et al., Developing Governance and Governing Development 90-92 (2021). [18] Lyle Campbell, American Indian Languages: historical linguistics of Native America 11 (2000). [19] Lyle Campbell, American Indian Languages: historical linguistics of Native America 11 (2000). [20] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide 111 (2013). [21] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide 111-14 (2013) (explaining that epidemics continued to sweep native communities until 1900). [22] Roger Williams, A key into the language of America (1643) (unnumbered book). [23] Roger Williams, A key into the language of America (1643) (unnumbered book). [24] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide 113-14 (2013) (Great Lakes populations had begun to recover from first contact during the 1700s, in response to the fur trade). [25] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide 116 (2013). [26] Johnson v. M’Intosh, 21 U.S. 543, 543 (1823). [27] See generally Cherokee Nation v. State of Ga., 30 U.S. 1, 3 (1831). [28] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide, 117 (2013). [29] Margaret Bender, Signs of Cherokee Culture : Sequoyah's Syllabary in Eastern Cherokee Life xi (2002) (explaining that some tribes resisted literacy fearing it would result in language loss, but the existence of written forms of the language have proven critical to the long-term preservation of the Cherokee and Ute languages). [30] Id. [31] Cherokee Nation v. State of Ga., 30 U.S. 1, 3 (1831). [32] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide, 117 (2013). [33] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide, 118 (2013). [34] Margaret Bender, Signs of Cherokee Culture : Sequoyah's Syllabary in Eastern Cherokee Life 7-8, 112 (2002). [35] Brendan C. Lindsay, Murder state: California’s Native American Genocide, 1846-1873, 245 (2012). [36] Benjamin Madley, An American Genocide, The United States and the California Catastrophe, 1846–1873, 11 (2016). [37] See Jessica Keating, The Assimilation, Removal, and Elimination of Native Americans, University of Note Dame 6 (2020). [38] See Jessica Keating, The Assimilation, Removal, and Elimination of Native Americans, University of Note Dame 6 (2020). [39] Matthew L.M. Fletcher, Federal Indian Law 8 (2016) (citing 25 U.S.C. § 71). [40] Matthew L.M. Fletcher, Federal Indian Law 9-10 (2016). [41] Matthew L.M. Fletcher, Federal Indian Law 9-10 (2016). [42] Matthew L.M. Fletcher, Federal Indian Law 9-10 (2016). [43] Matthew L.M. Fletcher, Federal Indian Law 9-10 (2016). [44] Ann Piccard, Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137, 151 (2013). [45] Ann Piccard, Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137, 154 (2013). [46] Ann Piccard, Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137, 152 (2013). [47] Courtney Hodge, Is the Indian Child Welfare Act Losing Steam?: Narrowing Non-Custodial Parental Rights After Adoptive Couple v. Baby Girl, 7 Colum. J. Race & L. 191, 202 (2016). [48] Diane Smith, ed. et al., Developing Governance and Governing Development, 90 (2021). [49] Diane Smith, ed. et al., Developing Governance and Governing Development, 90 (2021). [50] Diane Smith, ed. et al., Developing Governance and Governing Development, 90 (2021). [51] Diane Smith, ed. et al., Developing Governance and Governing Development, 90 (2021) (history of Houma Indians developed by Professor Adam Crepelle). [52] Adam Crepelle, Standing Rock in the Swamp: Oil, the Environment, and the United Houma Nation’s Struggle for Federal Recognition, 64 Loy. L. Rev. 141, 152 (2018). [53] Matthew L.M. Fletcher, Federal Indian Law 12 (2016). [54] Navajo Code Talkers and the Unbreakable Code, CIA, (Nov. 6, 2008), https://www.cia.gov/stories/story/navajo-code-talkers-and-the-unbreakable-code/. [55] Ann Piccard, Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137, 151 (2013) (as its name suggests, the Indian Termination Act attempted to shutdown tribes, denying sovereignty as a means of assimilation). [56] Matthew L.M. Fletcher, Federal Indian Law 12-13 (2016). [57] Matthew L.M. Fletcher, Federal Indian Law 13-14 (2016). [58] James T. Johnson, Treaty Fishing Rights and Indian Participation in International Fisheries, 77 Denv. U. L. Rev. 403, (1999) (citing United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974)). [59] United States v. Washington, 384 F. Supp. 312, 333 (W.D. Wash. 1974). [60] United States v. Washington, 853 F.3d 946, 972 (9th Cir. 2017). [61] See generally Wash. State Department of Licensing v. Cougar Den, Inc., 139 S.Ct. 1000 (2019). [62] Wash. State Department of Licensing v. Cougar Den, Inc., 139 S.Ct. 1000, 1018-28 (2019). [63] James W. Zion, Civil Rights in Navajo Common Law, 50 U. Kan. L. Rev. 523, 543 (2002). [64] James W. Zion, Civil Rights in Navajo Common Law, 50 U. Kan. L. Rev. 523, 544-45 (2002). [65] Indian Adoption Project, Upstander Project, (2022), https://upstanderproject.org/firstlight/iap. [66] Indian Adoption Project, Upstander Project, (2022), https://upstanderproject.org/firstlight/iap. [67] Courtney Hodge, Is the Indian Child Welfare Act Losing Steam?: Narrowing Non-Custodial Parental Rights After Adoptive Couple v. Baby Girl, 7 Colum. J. Race & L. 191, 207 (2016). [68] 25 U.S.C. §§ 1901–1963. [69] Courtney Hodge, Is the Indian Child Welfare Act Losing Steam?: Narrowing Non-Custodial Parental Rights After Adoptive Couple v. Baby Girl, 7 Colum. J. Race & L. 191, 203 (2016); see also, ICWA Guide Online, Topic 2: Jurisdiction, National Indian Law Library (2022), https://narf.org/nill/documents/icwa/faq/jurisdiction.html. [70] 25 U.S.C. § 3002; see generally, Michael F.P. Doming, The Tale of the Tunica Treasure, The Harvard Crimson, (Oct. 13, 1983), https://www.thecrimson.com/article/1983/10/13/the-tale-of-the-tunica-treasure/ (explaining the legal dispute between the Tunica Indians of Louisiana and Harvard’s Peabody Essex Museum, a precursor of NAGPRA). [71] Kelly E. Yasaitis, NAGPRA: A Look Back Through the Litigation, 25 J. Land Resources & Envtl. L. 259, 264-65 (2005). [72] 25 U.S.C. § 3001(3). [73] 43 C.F.R. § 10.1(b)(3). [74] United States v. Tidwell, 191 F.3d 976 (9th Cir. 1999); United States v. Corrow, 119 F.3d 796 (10th Cir. 1997). [75] Kelly E. Yasaitis, NAGPRA: A Look Back Through the Litigation, 25 J. Land Resources & Envtl. L. 259, 285 (2005) (citing State v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 752-53 (Tenn. Ct. App. 2001)). [76] 25 U.S.C. §§ 2901-2906 (1990). [77] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 331 (2005). [78] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 331-32 (2005). [79] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 331-32 (2005). [80] Meyer v. Nebraska, 262 U.S. 390, 390 (1923). [81] Meyer, 262 U.S. at 403. [82] Meyer, 262 U.S. at 403. [83] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 332-44 (2005). [84] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 366 (2005) (citing Treaty with the Western Cherokee, May 6, 1828, art. 5, 7 Stat. 311). [85] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 22 (2008). [86] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 23 (2008). [87] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 23 (2008). [88] 42 U.S.C. § 2991a. [89] Kristen Carpenter & Alexey Tsykarev, (Indigenous) Language as a Human Right, 24 UCLA J. Int'l L. & Foreign Aff. 49, 77 (2020). [90] Office of Hawai"ian Affairs v. Department of Educ., 951 F.Supp. 1484 (D. Hawai'i 1996); compare Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate, 470 F.3d 827 (9th Cir. 2006) (permitting exclusion of non-Native Hawaiians from private school enrollment). [91] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 49 (2008) (citing Public Law No. 108-394). [92] 20 U.S.C.A. § 7453; 20 U.S.C.A. § 7492. [93] 20 U.S.C.A. § 7453. [94] 42 USCA § 2991b-3. [95] 42 USCA § 2991b-3. [96] Indian Affairs Announces Funding for Living Languages Grants, U.S. Department of the Interior, Dec. 3, 2021, https://www.bia.gov/news/indian-affairs-announces-funding-living-languages-grants. [97] 17 Guam Code §§ 8101 (2019). [98] 17 Guam Code §§ 8103 (2019) (https://law.justia.com/codes/guam/2019/title-17/division-2/chapter-8/). [99] Haw. Const. art. XV, § 4. [100] Lisa Kaczke, South Dakota recognizes official indigenous language, ArgusLeader (March 22, 2019), https://www.argusleader.com/story/news/politics/2019/03/22/south-dakota-recognizes-official-indigenous-language-governor-noem/3245113002/. [101] U.S. English, Official English Laws (2020), https://www.usenglish.org/us-states-official-english-laws/. [102] Id. [103] Id. [104]Art. 13, United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), GA Res. 61/295, 13 September 2007. [105] Robert F. Weber, Individual Rights and Group Rights in the European Community’s Approach to Minority Languages, 17 Duke J. Comp. & Int'l L. 361, 361 (2007) [106]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 499 (2004). [107]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 499 (2004). [108]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 503 (2004). [109]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 505-506 (2004). [110]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 511 (2004). [111]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 513-14 (2004). [112]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 499 (2004). [113]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 514 (2004). [114]Rangi Nicholson, Marketing the Maori Language, Northern Arizona University, (2003), https://jan.ucc.nau.edu/~jar/TIL_16.html. [115] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 326 (2005). [116] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 325 (2005). [117]Emma Hartley, Sami desire for truth and reconciliation process, Politico, (Jan. 10, 2016), https://www.politico.eu/article/sami-reconciliation-process-sweden-minority-multiculturalism-human-rights-discrimination/. [118] Fife, supra, note 1, at 326. [119] Jean-François Dupré, Culture politics and linguistic recognition in Taiwan: ethnicity, national identity, and the party system 88-89 (2017). [120] Jean-François Dupré, Culture politics and linguistic recognition in Taiwan: ethnicity, national identity, and the party system 89 (2017). [121] Jean-François Dupré, Culture politics and linguistic recognition in Taiwan: ethnicity, national identity, and the party system 90 (2017). [122] Jean-François Dupré, Culture politics and linguistic recognition in Taiwan: ethnicity, national identity, and the party system 90 (2017). [123] Julie Chi-hye Suk, Economic Opportunities and the Protection of Minority Languages, 1 Law & Ethics Hum. Rts. 134, 135 (2007). [124] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev.295, 300 (2019). [125] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 300 (2019); Elk v. Wilkins, 112 U.S. 94 (1884). [126] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 301 (2019). [127] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 302 (2019). [128] Shelby Cty. v. Holder, 570 U.S. 529, 557 (2013). [129] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 305 (2019). [130] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 305 (2019). [131] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 305 (2019). [132] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 309 (2019) (citing Brief of Amici Curiae for Navajo Nation, et al. in Support of Respondents and Respondent-Intervenors at 26, Shelby Cty. v. Holder, 133. S. Ct. 2612 (2013) (No. 12-96)). [133] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 309 (2019). [134] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev.295, 319 (2019). [135] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 319 (2019). [136] Felicia Fonseca, Navajo Nation loosens language requirements for top leaders, AZCentral (Jul. 21, 2015), https://www.azcentral.com/story/news/arizona/politics/2015/07/21/navajo-nation-loosens-language-requirements--top-leaders/30499807/. [137] Felicia Fonseca, Navajo Nation loosens language requirements for top leaders, AZCentral (Jul. 21, 2015), https://www.azcentral.com/story/news/arizona/politics/2015/07/21/navajo-nation-loosens-language-requirements--top-leaders/30499807/. [138] Felicia Fonseca, Navajo Nation loosens language requirements for top leaders, AZCentral (Jul. 21, 2015), https://www.azcentral.com/story/news/arizona/politics/2015/07/21/navajo-nation-loosens-language-requirements--top-leaders/30499807/. [139]Joe Whittle, Most Native Americans live in cities, not reservations. Here are their stories, The Guardian, (Sep. 4, 2017), https://www.theguardian.com/us-news/2017/sep/04/native-americans-stories-california. [140] Lorie M. Graham, A Right to Media?, 41 Colum. Hum. Rts. L. Rev. 429, 474 (2010). [141] Lorie M. Graham, A Right to Media?, 41 Colum. Hum. Rts. L. Rev. 429, 474 (2010). [142] Lorie M. Graham, A Right to Media?, 41 Colum. Hum. Rts. L. Rev. 429, 474 (2010). [143] Lorie M. Graham, A Right to Media?, 41 Colum. Hum. Rts. L. Rev. 429, 474 (2010). [144] Lorie M. Graham, A Right to Media?, 41 Colum. Hum. Rts. L. Rev. 429, 476 (2010). [145] Daniel J. Adam, Tribal Telecom: Telecommunications Regulation in Indian Country, 27 J. Legis. 153, 154 (2001). [146] John C. Miller & Christopher P. Guzelian, A Spectrum Revolution: Deploying Ultrawideband Technology on Native American Lands, 11 CommLaw Conspectus 277, 278 (2003). [147] Daniel J. Adam, Tribal Telecom: Telecommunications Regulation in Indian Country, 27 J. Legis. 153, 162 (2001). [148] Leonard M. Baynes, Deregulatory Injustice and Electronic Redlining: The Color of Access to Telecommunications, 56 Admin. L. Rev. 263, 293-94 (2004). [149] Office of Native Affairs and Policy, FCC, About the Office (Nov. 4, 2021), https://www.fcc.gov/office-native-affairs-and-policy. [150] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 14 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf (explaining that only eighteen tribes held spectrum licenses in 2019). [151] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [152] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 6 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [153] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 9 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [154] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 11 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [155] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 14 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [156] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 15 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [157] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 19 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [158] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 22 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [159] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 29 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [160]Frank Vaisvilas, Wisconsin's first Indigenous language road signs are unveiled at Red Cliff, marking 'an historic day’, Green Bay Press Gazette, (Nov. 9, 2021), https://www.greenbaypressgazette.com/story/news/native-american-issues/2021/11/09/wisconsin-installs-indigenous-language-road-signs-red-cliff/6345135001/. [161]Kathleen McQuillan-Hofmann, Enweyang Ojibwe Language Nest, University of Minnesota Duluth, (2015), https://web.archive.org/web/20150906181515/http://www.d.umn.edu/external-affairs/homepage/10/languagenest.html. [162]North Dakota colleges collaborate to preserve tribal language, culture, (Oct. 18, 2021), https://www.newscenter1.tv/north-dakota-colleges-collaborate-to-preserve-tribal-language-culture/. [163]Rachel Hatzipanagos, How Native Americans launched successful coronavirus vaccination drives: ‘A story of resilience’, Washington Post, (May 6, 2021), https://www.washingtonpost.com/nation/2021/05/26/how-native-americans-launched-successful-coronavirus-vaccination-drives-story-resilience/. [164]Morton v. Mancari, 417 U.S. 535, 554 (1974). [165]English and Civics Testing, U.S. Citizenship and Immigration Services, (Jan. 13, 2022), https://www.uscis.gov/policy-manual/volume-12-part-e-chapter-2. [166]Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008 [167]See generally Courtney Hodge, Is the Indian Child Welfare Act Losing Steam?: Narrowing Non-Custodial Parental Rights After Adoptive Couple v. Baby Girl, 7 Colum. J. Race & L. 191, 202 (2016). [168] Learning Navajo language helps students connect to their culture, ASU, (Apr. 17, 2014), https://news.asu.edu/content/learning-navajo-language-helps-students-connect-their-culture. [169] Evan L. Seite, Language Legislation in Iowa: Lessons Learned from the Enactment and Application of the Iowa English Language Reaffirmation Act, 95 Iowa L. Rev. 1369, 1373 (2010). [170] Evan L. Seite, Language Legislation in Iowa: Lessons Learned from the Enactment and Application of the Iowa English Language Reaffirmation Act, 95 Iowa L. Rev. 1369, 1373 (2010). [171] David Jung et al., A Local Official’s Guide to Language Access Policies, 10 Hastings Race & Poverty L. J. 31, (2013) (citing Guadalupe Org. Inc. v. Tempe Elementary School Dist. No. 3, 587 F.2d 1022, 1027 (9th Cir. 1978) (holding there is no constitutional right to bilingual education); and citing Carmona v. Sheffield, 475 F.2d 738, 739 (9th Cir. 1973) (holding no constitutional right to foreign language employment notices)). [172] 65 FR 50121, Exec. Order No. 13166, 2000 WL 34508183(Pres.) [173] David Jung et al., A Local Official’s Guide to Language Access Policies, 10 Hastings Race & Poverty L. J. 31, 40-45 (2013). [174] David Jung et al., A Local Official’s Guide to Language Access Policies, 10 Hastings Race & Poverty L. J. 31, 46 (2013). [175] David Jung et al., A Local Official’s Guide to Language Access Policies, 10 Hastings Race & Poverty L. J. 31, 48 (2013). [176] See David Jung et al., A Local Official’s Guide to Language Access Policies, 10 Hastings Race & Poverty L. J. 31, 48-50 (2013).
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